Delhi District Court
Sate vs . Pappu @ Mahesh & Ors. on 4 March, 2009
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IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE
(NORTH-WEST)-04, ROHINI/DELHI
(Sessions Case No. : 162/07)
Sate Vs. Pappu @ Mahesh & Ors.
FIR No. : 189/04
U/s : 365/406/302/201/34 IPC
P.S : Rohini
State VS. 1. Pappu @ Mahesh
S/o Sh. Brijvir Singh
R/o Village Seekur, P.S Sasni
Distt. Aligarh, (U.P).
2. Member Singh @ Satish
S/o Sh. Gainda Lal
R/o Village Samad Pur,
Distt. Hathras, ( U.P.)
3. Amar Pal @ Kanwar Pal
S/o Sh. Raj Pal
R/o RZF 1/6, Gali No.5,
Mahavir Enclave,
Palam, New Delhi.
Date of institution of the case-02.6.2004
Date on which, judgment have been reserved-19.02.2009
Date of pronouncement of judgment-04.03.2009
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JUDGEMENT
The present case has been registered on the basis of the complaint ( Ex. PW-7/A) of the complainant Pradeep Kumar, wherein he stated that on 24.2.2004 at about 7:00 P.M one person came and asked him to take tempo TATA 407 on rent on the pretext that that he has to take buffalo in the said tempo from Delhi to Kher Tapple and on return he has to bring back 50 bags of potatoes. It is stated that the above named complainant sent his driver Arjun ( since deceased) and Tempo TATA-407 bearing no. DL1LD-2857 alongwith the said person. It is further stated that two more persons were accompanying that person who hired the aforesaid tempo, while they came at the stand of the complainant alongwith the buffalo in the tempo. These persons were sitting in the tempo when the tempo was filled up with the fuel worth Rs. 1140/-.The driver of the tempo alongwith those persons and buffalo left in the aforesaid tempo and they were to return on 25.2.2004, but they did not return. The complainant searched the tempo and driver but they could not be traced and thereafter he lodged the aforesaid complaint (Ex.PW7/A) which led to the registration of the present case.
It is the case of the prosecution that accused Member Singh was the person who hired the aforesaid tempo and other persons accompanying him were 3 the co-accused Kanwar Pal @ Amar Pal and Pappu @ Mahesh . It is stated that all the above named accused persons, in furtherance of their common intention, abducted the driver Arjun Singh ( since deceased) with tempo TATA 407 bearing registration no. DL1LD-2857 belonging to the complainant Pradeep Kumar with intent to cause the said Arjun Singh to be secretly and wrongfully confined. It is further stated that during the said confinement all the three accused, in furtherance of their common intention, committed murder of Arjun Singh and his dead body was found in the fields within the jurisdiction of P.S Ghonda (UP). It is also stated that the aforesaid tempo TATA 407 bearing registration no. DL1LD-2857 was entrusted to the accused persons by the complainant and the accused persons dishonestly misappropriated or converted to their own use the aforesaid tempo TATA 407 bearing registration no. DL1LD- 2857 and also committed the murder of its driver Arjun Singh . It is further alleged that accused persons also caused the disappearance of the evidence of the commission of the aforesaid offences.
After registration of the FIR in the present case, the investigation of this case was entrusted to PW-28 SI Naresh Bhatia, who conducted the initial investigation of the present case. Thereafter, the investigation of the present case 4 was assigned to PW-26- Insp. Rajbir Singh who carried out the investigation in this case.
2. On the completion of the investigation, the charge sheet was filed. After committal, the arguments on the point of charge were heard and on the basis of the material on record, charges for committing the offences punishable u/s 365/34,406/34, 302/34 & 201/34 IPC were framed against the above named accused persons by the Ld. Predecessor of this court , to which accused persons pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined 28 witnesses PW-1 to PW-28. After recording the prosecution evidence, the statements of accused u/s 313 Cr. PC were recorded, wherein the accused persons denied all the incriminating evidence against them and stated that they were innocent and have been falsely implicated in this case. Accused Kanwar Pal @ Amar Pal and Pappu @ Mahesh stated that they do not want to lead evidence in their defence,however accused Member Singh stated that he wants to lead evidence in his defence. In his defence, the accused Member Singh has examined one witness i.e DW-1 5 Chander Veer.
4. I have heard the arguments put forward by ld. APP for state and Ld. defence counsels and have carefully gone through the record of the case. I have carefully considered the evidence adduced by the prosecution in support of its case and by the accused Member Singh in his defence. I have also carefully perused the written arguments and case law filed on behalf of the accused persons.
5. In the present case, the case of the prosecution is that the accused Member Singh alongwith his co-accused Kanwar Pal @ Amar Pal and Pappu @ Mahesh, in furtherance of their common intention, abducted the driver Arjun Singh of the Tempo TATA-407 bearing no. DL1LD-2857 and thereafter they committed the murder of the above named Arjun Singh. It is also stated that the above named accused persons, apart from committing the murder of the Arjun Singh also committed criminal breach of trust in respect of the aforesaid tempo TATA 407 and also caused the disappearance of the evidence of the commission of the aforesaid offences.
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6. To prove its case on record, the prosecution has examined 28 witnesses i.e PW1 to PW-28.
PW-1 HC Ram Rattan has recorded the FIR of this case and has proved the copy of the FIR as Ex. PW1/A. PW-2 Dr. Pramod Kumar conducted the postmortem on the body of the deceased and has proved the said postmortem report and his opinion as Ex. PW2/A and Ex. PW2/B respectively. He has also proved the inquest proceedings as Ex. PW2/C1 to C10.
PW-3 Shiv Kumar is the photographer, who took the photographs of the dead body in the field of Arnia and has proved the negative as Ex. PW3/A and print photograph as Ex. PW3/B. PW-4 Dheeraj Singh is the relative of the deceased Arjun Singh and he identified the clothes of the deceased and also proved his photograph as Ex. PW3/B. PW-5 Prem Singh and PW-6 Jitender Singh are the witnesses to the recovery of the dead body in the fields of village Arania.
PW-7 Pradeep Kumar is the star witness of the prosecution in the 7 present case, on whose testimony the prosecution is relying upon to prove its case on record.
PW-8 Sham Lal is the owner of the fields in Arnia, from where the dead body of the deceased was recovered.
PW-9 Chander Pal gave information regarding the dead body lying in the fields of Sham Lal to the local police of P .S Ghonda and he has proved the Panchnama as Ex. PW9/A. PW-10 Ashok Kumar and PW-11 Shri Ram have also proved the aforesaid Panchnama Ex. PW9/A. PW-12 Ct. Gaya Saran Singh of P.S Ghonda received the information at P.S Ghonda from one Chander Pal regarding the dead body of the unknown person and on the basis of the statement of Chander Pal, he registered the case vide FIR No. 11/04 u/s 302/201 IPC.
PW-13 Joginder Kumar Singhla stated that on 11.3.2004 the police official came to his telephone booth and took print out of the telephone number 32036018 dated 24.2.2004 and he has proved the slip to this effect and recovery memo as Ex. PW13/A and Ex.PW13/B respectively.
PW-14 Ct. Satbir was posted at P.S Ghonda on 25.2.2004 and he 8 took the dead body of the deceased for postmortem to the hospital.
PW-15 SI Yatender Kumar Singh deposed that on 25.2.2004 he was posted at P.S Ghonda Distt.Aligarh U.P, where a case was registered vide crime no. 11/2004 u/s 302 & 201 IPC and on 02.3.2004, Insp. Rajbir Singh alongwith his staff from P.S Rohini came to the P.S alongwith public witnesses Dheeraj and Pappu Singh, who identified the photographs of the deceased Arjun Singh. He handed over the photographs of deceased , its negatives and the clothes to Delhi Police vide memo Ex. PW15/A and he also handed over the copy of FIR (Ex. PW15/B) to Insp. Rajbir Singh.
PW-16 SI Manohar Lal, Drafts Man, prepared the site plan of the fields of Sham Lal and has proved the said site plan as Ex. PW16/A. PW-17 HC Vijay Pal recorded the FIR No. 189/04 u/s 365 IPC at P.S Rohini and he has proved the copy of the same as Ex. PW17/A and stated that he handed over the original rukka and copy of FIR to SI Naresh Bhatia for investigation.
PW-18 SI Baldev Prasad carried out the initial investigation and proceedings after the recovery of the body in the agricultural land (fields) of village Arnia on 25.2.2004. He has proved the Panchnama of the dead body and 9 seizure memo of the earth control as well as the blood stainers from the spot as Ex. PW 18/A and Ex.PW18/B respectively. He has further proved the seizure memo of one rope and canvas shoes from the spot as Ex. PW18/C. He deposed that on 19.4.2004, the Delhi Police alongwith accused Member Singh came there and accused Member Singh pointed out the place where the dead body was found lying saying that he alongwith his co-accused had thrown the dead body after committing of the murder. He further stated that he handed over the photographs and clothes of the deceased alongwith the Panchnama, copy of rukka, site plan to the Delhi Police .
PW-19 HC Naresh Kumar has been dropped at the request of ld. APP as other witnesses have already been examined on that aspect.
PW-20 Ct. Paras Ram deposed that on 13.4.2004, he came to the P.S Rohini from P.S Ghonda for depositing the postmortem papers as well as the sealed parcel containing the clothes of the deceased.
PW-21 SI Dayanand deposed that on 06.3.2004, he was posted at P.S Rohini and on that day a rukka u/s 25 of Arms Act and 411 IPC against the accused Member Singh was received by him and he reached the spot near M2K Cinema Gate at Rohini, where SI Naresh Kumar handed over to him, accused 10 Member Singh alongwith Maruti Car 800 and sealed pulanda containing country made pistol/katta. He prepared the site plan and interrogated the accused and recorded the disclosure statement and informed the Addl. SHO of P.S Rohini about the same.
PW-22 Ct. Banwari Lal accompanied the PW-15 SI Yatender Kumar Singh and PW-18 Baldev to the fields of village Arnia and deposed about the proceedings conducted there.
PW-23 Ct. Jakir Hussain was partly examined and his further examination was deferred and thereafter this witness was never examined by the prosecution and thus, his testimony can not be read in evidence.
PW-24 Pappu Singh is the brother of the deceased Arjun Singh and he deposed that on 02.3.2004, he alongwith his nephew Dheeraj went to the P.S Ghonda with the police officials of P.S Rohini where clothes and photographs of his deceased brother Arjun Singh were shown to him and he identified the said clothes and photographs. He has proved the said photograph as Ex. PW3/B and has also proved the pant, shirt and underwear of the deceased as Ex PX, Ex. PX1 and Ex. PX2 respectively.
PW-25 Bijender Singh also reached the spot i.e agricultural land of 11 Sham Lal, where the Panchnama Ex. PW18/A was prepared in his presence.
PW-26 Insp. Rajbir Singh is the main IO of this case who conducted the investigation in this case.
PW-27 Ms.Archana Sinha Ld. M.M conducted the TIP proceedings in respect of the accused Pappu and she has proved the said TIP proceedings as Ex. PW27/A. She has further proved the TIP proceedings in respect of the accused Member Singh as Ex. PW27/E. PW-28 SI Naresh Bhatia conducted the initial investigation of this case and later on, he handed over the further investigation to the main IO Insp. Rajbir Singh
7. It has been submitted by the ld. APP that in view of the last seen and circumstantial evidence brought on record, the prosecution has been successful in proving on record the guilt of the accused persons, beyond the reasonable doubt. Whereas on the other hand, it has been submitted by the ld. Defence counsels that the prosecution has failed to prove the guilt of the accused persons on record beyond the reasonable doubt.
The law relating to the circumstantial and last seen evidence have been 12 laid down by the Hon'ble Supreme Court of India in case reported as (2008) 8 SCC 456.
In the aforesaid case titled as " Venkatesan Vs. State of Tamil Nadu ( reported as (2008) 8 SCC 456)", it has been laid down by the Hon'ble Supreme Court of India that :-
" It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram V. State of Punjab, it was laid down that where the 13 case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt".
It has been further laid down in the aforesaid case that :-
"Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence ( Chapter VI) lays down the following rules special to be observed in the case of circumstantial evidence (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature 14 of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation , upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
In the aforesaid case law, it has also been laid down by the Hon'ble Supreme Court of India that :-
"The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible ."
In view of the above law laid down by the Hon'ble Supreme Court of India, it is clear that in order to convict the accused persons on the basis of the last seen and circumstantial evidence, it is essential that the circumstances from 15 which the inference of guilt is sought to be drawn must be cogently and firmly established on record by the prosecution and those circumstances should be of a definite tendency, unerringly pointing towards guilt of the accused and the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. From the above case law, it is also clear that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused committing the crime becomes impossible .
8. In the present case, the prosecution is relying upon the last seen evidence of PW-7 Pardeep Kumar and other circumstantial evidence to prove the guilt of the accused persons on record.
PW-7 Pradeep Kumar deposed that accused Member Singh present in the court came to his tempo stand at Avantika on 24.2.2004 and he asked him to give a tempo on hire to take the buffaloes to Aligarh and on return they were to bring the potatoes in the tempo and he also give him Rs. 1000/- as advance 16 towards the fare of the tempo. He further deposed that he sent his driver Arjun Singh alongwith the Tempo with accused Member Singh . He also deposed that the accused Member Singh was accompanied by two other persons at that time and these persons were also present in the court. He identified these persons as Pappu @ Mahesh and Amarpal @ Kanwarpal. PW-7 deposed that he alongwith driver and all the three accused persons went to the petrol pump situated at Mangolpur Khurd where the fuel was filled in the said tempo and thereafter all the three accused alongwith the driver and tempo left for UP and he came back to tempo stand. He further deposed that on the next day his tempo and driver did not come back and he waited up to evening on 25.2.2004, but neither the driver nor tempo returned and then he made written complaint in this respect to the police at P.S Rohini and the police started investigation of this case.
PW-7 Pradeep Kumar further deposed that the police brought the accused Member Singh to P .S and he identified him there to be the same person, who had taken the tempo alongwith driver. Thereafter he joined the investigation with the police and accused Member Singh took them to the house of accused Pappu but he was not present at that time in his house. Thereafter he accompanied the police party to the house of another accused but he was also not present at 17 his house at that time. PW-7 deposed that the police party also took the accused to the place where they have committed the murder of his driver Arjun Singh in the night time and they pointed out the place of incident in his presence. PW-7 also deposed that till date he did not know about the whereabouts of his tempo, however the dead body of his driver was recovered.
The important fact is that the aforesaid material witness PW-7 Pardeep Kumar was cross examined by the ld. Defence counsels, but nothing material has come on record which could assail the credibility or trustworthiness of this witness or which could be of any help to the accused persons. In his cross examination by the ld. defence counsels, PW-7 denied the suggestion that accused Member Singh did not hire the Tempo. He further denied the suggestion that he did not tell the name of Member Singh as the person who had taken the Tempo on the hire basis. PW-7 also denied the suggestion that he was deposing falsely at the instance of the police.
9. The case of the prosecution has also been supported by the testimonies of PW-28 SI Nareesh Bhatia and PW-26 Insp. Rajbir Singh.
PW-28 SI Naresh Bhatia deposed that on 01.3.2004, he was posted at 18 P.S Rohini and after the registration of the FIR, he alongwith his staff reached at the place of occurrence at Tempo stand, Avantika alongwith complainant and he inspected the place and prepared site plan Ex. PW-28/A. After that, he alongwith his staff went to District Aligarh, SSP Office regarding investigation of the present case and Inspector Rajbir Singh, the Addl. SHO P.S Rohini alongwith staff and relatives of the driver who was missing, also reached there. The police officials at SSP office / G.D office had shown them the photographs of several unidentified dead bodies and out of those photographs one photograph of the dead body, which was stated to be recovered from the area of police station Gonda UP, was correctly identified by the relatives to be of Arjun Singh. Thereafter, they all reached the P.S Gonda where they met with the SO SI Yatender and SI Baldev Prasad, who also show them the photographs and clothes of the deceased and the said photographs and the clothes of the deceased Arjun Singh were identified by his relatives. They also pointed out the place where they recovered the dead body of the deceased. The SO handed over the negatives and photographs of the body of the deceased and the clothes were sealed by them again and were deposited in the malkhana. They searched for Tata 407 on which the deceased was driver and accused persons but they could not be found and they came back at police 19 station, Rohini on 04.3.2004 and Section-302 IPC was added and further investigation was handed over to Inspector Rajbir Singh on the oral of directions of the Senior Officers.
PW-28 further deposed that on 05.3.2004, he joined the investigation with the IO Insp. Rajbir Singh and at about 8:30 p.m they were present at Avantika Chowk, when he got a secret information that one desperate criminal will come at M2K in a Maruti Car of white colour and if raided he can be apprehended and he told this fact to Insp. Rajbir Singh. Thereafter, a raiding party of police officials was organized under the supervision of Insp. Rajbir who asked 5-6 passers by to join the raiding party after briefing them about the information but none agreed to join and left the place without disclosing their names and addresses. After that , they reached at the entry gate of M2K cinema and at about 9:45 P.M, one white Maruti Car came from Sector-7 side and reached at the entrance gate of cinema hall and informer pointed out towards the car and they asked the driver of the car to stop the same and accused stopped the car at some distance and tried to escape from the spot but he was apprehended by him alongwith other police officials i.e HC Naresh Tyagi and the name of the accused was revealed later on as Member Singh, the accused present in the court and from 20 his formal search one country made pistol was recovered from the right dub of his pant and it was found to be loaded. Accused was interrogated and proceedings under the Arms Act were conducted by him and pertaining to this recovery, a case FIR No. 206/04 was registered at PS Rohini against the accused under Section -25 of Arms Act. During the course of interrogation, accused made disclosure regarding his involvement in the present case and accordingly, the accused Member Singh was handed over to Insp. Rajbir Singh who interrogated the accused in the present case and he was arrested vide arrest memo Ex. PW26/A and made a disclosure statement- Ex. PW-26/B. Accused Member Singh disclosed that he kept concealed an iron rod which was used as weapon of offence in the present case and he also disclosed that he had also kept concealed his blood stained clothes which he was wearing at the time of the incident and accused further disclosed that he can get the same recovered. After the accused refused to join the TIP, his P.C remand was obtained on 11.3.2004 and accused was again interrogated on that day and made disclosure statement Ex. PW-26/D and he led them to the area of police station Gonda and pointed out the place where he committed the murder of driver Arjun Singh and threw the dead body there vide pointing out memo Ex. PW26/G. Thereafter, the accused Member Singh led them 21 to his house situated at Village Samadhpur, District Mathura, UP and got recovered one iron rod ( kamani patta side) and his blood stained pant and shirt from his house/jhuggi and the said iron rod and clothes were sealed by the IO with the seal of NB separately in two pullandas and these were taken into possession vide memos Ex. PW26/E and Ex. PW-26/F respectively. After that they came back to Delhi and case property was deposited by the IO in the malkhana.
PW-28 SI Naresh Bhatia further deposed that on 8.4.2004, he again remained with the IO in the investigation of this case and on that day, accused Pappu Singh @ Mahesh present in the court surrendered before the court and after obtaining the permission of the ld. MM, he was interrogated by the IO and was kept in muffled face and was sent to JC. On 19.4.2004, he again joined the investigation and on that day IO obtained the PC remand of Pappu @ Mahesh and accused pointed out the place of occurrence which falls in the area of P.S Ghonda, UP vide pointing out memo Ex. PW-28/B and made the disclosure statement, which is Ex. PW-26/X1. Accused Pappu was arrested vide memo Ex. PW-26/X2 and his personal search was taken vide memo Ex. PW-26/X3. He further deposed that on 25.5.2004, on the directions of the IO Insp. Rajbir Singh he received one sealed parcel sealed with the seal of NB for obtaining the opinion DDU hospital 22 regarding the weapon of offence and he produced the said pulanda and request before the Dr. P.Kumar of DDU hospital and after examining the iron rod, doctor gave opinion on the application.
10. The testimony of PW-28 SI Naresh Bhatia has been corroborated to a large extent by the testimony of PW-26 Insp. Rajbir Singh, who deposed that on 01.3.2004, he was posted as Addl. SHO, P.S Rohini and on that day a written complaint ( Ex. PW-7/A) was handed over to him by Pradeep Kumar and he marked the same to SI Naresh Bhatia vide endorsement ( Ex. PW-26/A). Thereafter he was asked by the ACP concerned to personally look after this case and he alongwith his team went to Aligarh and on checking the record of unidentified bodies of all the P.S in Distt. Aligarh, they came to know about the dead body found in the area of P.S Ghonda Distt.Aligarh. They went to P.S Ghonda, where the IO of FIR No.-11/04 had shown them the photographs and clothes of the said dead body and the same were identified to be of Arjun Singh by his relatives. PW-26 also deposed that on 06.3.2004, accused Member Singh was arrested at the parking of M2K Cinema and during interrogation, he disclosed about the offence in the present case. He was arrested vide memo Ex. PW-26/A 23 and he refused to join the TIP. Later on, P.C remand of accused Member Singh was obtained and he got recovered an iron rod from his jhuggi and the said iron rod was used in the commission of offence as disclosed by the accused.
PW-26 Insp. Rajbir Singh further deposed that accused Pappu @ Mahesh surrendered before the court. He moved an application for the TIP of accused and the accused Pappu @ Mahesh was correctly identified by complainant in judicial TIP at Tihar Jail. During the course of investigation, he obtained the PC remand of accused Pappu but no recovery was effected. After the completion of the investigation pertaining to accused Member Singh and Mahesh @ Pappu, he prepared charge sheet, which was filed in the court through SHO P.S Rohini. He tried his best to arrest the remaining accused Amar Pal @ Kanwar Pal, but he could not be arrested till the filing of the chargesheet.
PW-26 Insp. Rajbir Singh deposed that accused Amar Pal surrendered before the court of Ld. MM on 10.9.2004 and he moved an application for TIP of accused, but accused refused to join TIP proceedings. After that, he obtained the PC remand of accused but no recovery was effected at the instance of the accused. Accused pointed out the place of occurrence and disclosure statement of accused 24 was also recorded by him. During the course of investigation, the documents pertaining to the investigation conducted by UP police were sent by UP police to police station Rohini, which were placed on record by him.
11. The case of the prosecution have also been supported by the PW-15 SI Yatender Kumar Singh and PW-18 SI Baldev Prasad.
PW-15 SI Yatender Kumar Singh deposed that on 25.2.2004, he was posted in P.S Ghonda Distt.Aligarh UP and on that day, one unknown dead body was found lying within the jurisdiction of Ghonda and in this respect a case was registered vide crime no. 11/2004 u/s 302 & 201 IPC. On 02.3.2004, Insp. Rajbir Singh alongwith his staff from P.S Rohini came to his P.S alongwith public witness Dheeraj and Pappu Singh. He had shown the photographs of the deceased to them and they identified him as Arjun Singh and he had shown the clothes of the deceased after de-sealing the same and they also identified the same to be of Arjun Singh. He handed over the photographs of deceased and its negatives and the clothes and the same were taken in to possession by the Delhi Police vide memo Ex. PW-15/A . He also handed over the copy of FIR ( Ex. PW-15/B) to Insp. Rajbir Singh.
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12. PW-18 SI Baldev Pd., deposed that on 25.2.2004, he was posted at P.S Ghonda, Distt. Aligarh UP and on that day, an information was received in the P.S that one dead body of a male was lying in the agricultural land of village Arnia, he alongwith his staff reached over there and he prepared the Panchnama ( Ex. PW-18/A) of the dead body. Photographs of the dead body were taken. He had lifted the earth control as well as the blood stainer from the spot after sealing the same in separate parcels and same were taken into possession vide seizure memo Ex. PW-18/C. A case u/s 302/201 IPC was registered at P.S Ghonda in this connection and the postmortem examination was got conducted on the dead body at the mortuary. He further deposed that on 02.3.2004, the police official of Delhi Police accompanied by two public persons came there and those public persons namely Pappu and Dheeraj identified the clothes and photographs to be that of deceased Arjun Singh. He deposed that Delhi Police prepared the site plan of the place from where the dead body was recovered at his instance. He also deposed that Delhi Police again came to P .S Ghonda and accused had pointed out the place where the dead body was found lying saying that he alongwith his co-accused had thrown the dead body after committing the murder.
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13. In the present case, in view of the testimoney of PW-7 Pradeep Kumar and other circumstantial evidence, the prosecution has been successful in proving on record the guilt of the accused persons for committing the offence punishable u/s 302/34 IPC beyond the reasonable doubts. PW-7 in his testimony has specifically stated that on 24.2.2004, accused Member Singh came to tempo stand and asked him to give tempo TATA 407 on rent on the pretext that that he has to take buffalo in the said tempo from Delhi to Kher Tapple . He further deposed that at that time the accused Member Singh was accompanied by two other persons and he identified these persons as accused Kanwar Pal @ Amar Pal and Pappu @ Mahesh . PW-7 also deposed that thereafter he alongwith the driver and all the three accused persons went to the petrol pump where the fuel was filled in the said tempo and thereafter all the three accused alongwith the driver and tempo left for UP.
In the case reported as (2008) 8 SCC 456 (supra), it has been laid down by the Hon'ble Supreme Court of India that the last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that 27 possibility of any person other than the accused being the author of the crime becomes impossible . In the present case, as per the last seen evidence of PW-7, the deceased Arjun Singh was seen alive with three accused persons by the PW-7 Pradeep Kumar on 24.2.2004 and thereafter his dead body was found in the fields of village Arnia (UP). The postmortem on the dead body of the deceased was conducted by the PW-2 Dr. Pramod Kumar, who deposed that he conducted the postmortem on the dead body on 26.2.2004 at about 5:00 P.M and opined that the cause of death in this case was due to shock and hemorrhage as a result of ante mortem injuries and the time since death was about one and half day. In these circumstances, as per postmortem report (Ex. PW2/A) the time since death of the deceased was about one and half day and the said postmortem was conducted on 26.2.2004 and as per the last seen evidence, the deceased was seen alive with the accused persons on 24.2.2004 by the PW-7. In these circumstances, the time gap between point of time when the accused persons and the deceased were last seen alive and when the deceased was found dead is so small that possibility of any person other than the accused committing the crime becomes impossible. In addition to this , the guilt of the accused persons is also proved on record by the fact that the weapon of offence i.e iron rod got recovered by the accused Member 28 Singh vide memo ( Ex. PW-26/E ) has also been connected with the nature of injuries found on the body of the deceased. In this regard, PW-2 Dr. Pramod Kumar deposed that the injuries were possible by the weapon which was shown to him by the police. PW-2 Dr. Pramod Kumar was also shown the iron rod (Ex. P-X) and he stated that it was the same rod on which he gave his opinion on Ex. PW-2/A and injury no.1 is possible due to that rod.
Hence, in view of the above, the last seen and circumstantial evidence brought on record by the prosecution unerringly point towards the guilt of the accused persons and the aforesaid circumstances taken cumulatively form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused persons and none else .
Ld. defence counsels have relied upon the case law cited as IV (2006) CCR438 (DB), 2004(3) C.C.Cases (SC) 61 & 1994 JCC 388 (SC), however the said case law is not applicable in the present case as the fact and circumstances of the present case are different from the fact and circumstances of the cases discussed in the said case law and in my considered opinion, the aforesaid case law is not of any help to the accused persons in the present case. 29
14. It has been submitted by the ld. Defence counsels that there are material contradictions in the testimonies of PW-7 and other prosecution witnesses and these contradictions are fatal to the case of the prosecution, however the said submissions made on behalf of the accused persons are devoid of any merits and are contrary to the record as perusal of the testimonies of the PW-7 Pradeep Kumar and other prosecution witnesses reveals that there are no material contradictions in their testimonies and the contradictions, if any are minor or trivial in nature and these are not fatal to the case of the prosecution.
In the present case, in his defence, the accused-Member Singh has examined DW-1 Chanderveer and as far as the testimony of this witness DW-1 is concerned, his testimony does not inspire confidence as there are material contradictions in his testimony and this witness DW-1 also appears to be a interested witness. In addition to this, it has also not been explained on behalf of the accused as to why any complaint was not made to the competent authorities in case he has been falsely implicated in this case. Further, it is not the case of the accused-Member Singh that PW-7 Pradeep Kumar was having any previous enmity with him which could have led to his false implication in this case. In these circumstances, the testimony of DW-1 does not inspire confidence and in 30 my considered opinion, the same is not of any help to the accused- Member Singh in the present case. In addition to this, no material fact in their defence have been stated by the accused persons in their statements recorded u/s 313 Cr. P.C.
15. In the instant case, the accused persons have also been charged for committing the offence punishable u/s 406 IPC and it has been stated that the accused persons were entrusted with the Tempo TATA-407 bearing no. DL1LD- 2857 for the purpose of taking buffaloes from Delhi to Kher Tapple and on return to bring back 50 bags of potatoes.The evidence brought on record shows that the said Tempo TATA-407 bearing no. DL1LD-2857 has not been recovered after it was entrusted to the accused persons alongwith the driver Arjun Singh. It has been deposed by the PW-7 Pradeep Kumar that he do not know about the whereabouts of his Tempo TATA-407 bearing no. DL1LD-2857, however the dead body of his driver was recovered from the fields of village Arnia . In these circumstances, in view of the testimony of PW-7 and other evidence brought on record by the prosecution, it is clear that the aforesaid Tempo TATA-407 bearing no. DL1LD-2857 which was entrusted to the accused persons by the PW-7 Pradeep Kumar have either been misappropriated or disposed of by the accused 31 persons. In fact, from the material on record, the said Tempo TATA-407 appears to be the motive for the committing of the murder of its driver Arjun Singh by the accused persons. In these circumstances and having regard to the fact and circumstances of the present case, I am of the considered opinion that the prosecution has also been successful in proving on record the guilt of the accused persons for committing the offence punishable u/s 406/34 IPC, beyond the reasonable doubts.
16. In the present case, the accused persons have also been charged for committing the offence punishable u/s 365/34 IPC, however the perusal of the testimonies of various prosecution witnesses reveals that no averment regarding the abduction of the driver Arjun Singh have been made by the PW-7 or other prosecution witnesses against the accused persons. Infact, the case of the prosecution is that the said Tempo TATA-407 bearing no. DL1LD-2857 alongwith its driver Arjun Singh was taken on hire by the accused persons from the PW-7 Pradeep Kumar and no evidence regarding the abduction of the driver of the tempo by the accused persons have come on record. In these circumstances, in my considered opinion, the ingredients of the offence punishable u/s 365/34 32 IPC are not made out in this case. In addition to this , the accused persons have also been charged for committing the offence punishable u/s 201/34 IPC, however the perusal of the testimonies of the various prosecution witnesses reveals that the said charge has also not been proved against the accused persons on record by the prosecution. In these circumstances, in view of the material on record, in my considered opinion, the prosecution has failed to prove the charge for committing the offences punishable u/s 365/34 IPC and 201/34 IPC against the accused persons. Accordingly, all the three accused persons are acquitted of the offences punishable u/s 365/34 IPC & 201/34 IPC.
17. Thus, in view of the above discussion and observations and in view of the testimonies of PW-7 and other prosecution witnesses, I am of the considered opinion that the prosecution has been able to prove on record beyond the reasonable doubt that all the three accused persons- Member Singh @Satish , Kanwar Pal @ Amar Pal and Pappu @ Mahesh, in furtherance of their common intention, committed the murder of Arjun Singh and they also dishonestly misappropriated or disposed of the aforesaid Tempo TATA-407 bearing no. DL1LD-2857 which was entrusted to them by the PW-7 alongwith its driver Arjun 33 Singh. Accordingly, I hold all the three accused- Pappu @ Mahesh , Member Singh @Satish and Amar Pal @ Kanwar Pal guilty of the offences punishable u/s 302/34 IPC and 406/34 IPC and convicted them accordingly.
Now to come up for arguments on the point of sentence on 06.3.2009.
(Announced in the open ) (Paramjit Singh)
(court on 04.03.2009) Addl. Sessions Judge
(North-West)-04
Rohini/Delhi
34
FIR No.-189/04
P.S.-Rohini
04.03.09
(After Lunch)
Present: APP for the State.
All the three accused in JC with counsel Sh. Rajesh Antil. Vide separate judgment, announced in the open court, all the three accused Pappu @ Mahesh , Member Singh @Satish and Amar Pal @ Kanwar Pal have been convicted u/s 302/34 IPC and 406/34 IPC .
Now to come up for arguments on the point of sentence on 06.3.2.2009,as requested.
(Paramjit Singh) ASJ (N-W)-04 Rohini/Delhi 04.03.09 35 IN THE COURT OF SH. PARAMJIT SINGH : ADDL. SESSIONS JUDGE (NORTH-WEST)-04, ROHINI/DELHI (Sessions Case No. : 162/07) Sate Vs. Pappu @ Mahesh & Ors.
FIR No. : 189/04
U/s : 302/34 IPC and 406/34 IPC
P.S : Rohini
ORDER ON THE POINT OF SENTENCE
I have heard the arguments on the point of sentence put forward by ld. APP and ld. Defence counsels for all the convicts.
2. It has been submitted by the ld. APP that in view of the serious nature of offence, the convicts do not deserve any leniency and he prays that maximum sentence prescribed by the law may be imposed upon the convicts.
3. It has been submitted by the ld. Defence counsel for the convicts - Pappu @ Mahesh and Amar Pal @ Kanwar Pal that they are not the previous convicts and are having clean antecedents. He further submits that the convict- Amar Pal @ Kanwar Pal belongs to a poor family and is the sole bread earner of 36 his family, consisting of his wife and two minor children. He also submits that the accused Pappu @ Mahesh is also the sole bread earner of his family consisting of his old aged parents, handicapped brother and unmarried sister. Ld. defence counsel further submits that the convicts - Pappu @ Mahesh and Amar Pal @ Kanwar Pal have remained in the custody for the last more than 5 years during the investigation and trial of this case and he prays that a lenient view may be taken in this case.
4. Ld. Defence counsel for the convict- Member Singh @Satish also submits that the present case is not covered in the category of rarest of rare cases and she prays that a lenient view may be taken in this case.
5. I have carefully considered the submissions made by ld. APP and ld. Defence counsels and have carefully gone through the record of the case.
6. In the present case, all the three convicts have been convicted for committing the offences punishable u/s - 302/34 IPC and 406/34 IPC. The present case does not fall under the category of rarest of rare cases. In these circumstances 37 and having regard to the fact and circumstances of the present case, I hereby sentence all the three convicts - Pappu @ Mahesh , Member Singh @Satish and Amar Pal @ Kanwar Pal to undergo imprisonment for life and to pay a fine of Rs. 3000/- each in default SI for three months each u/s 302/34 IPC. I further sentence all the three convicts- Pappu @ Mahesh , Member Singh @Satish and Amar Pal @ Kanwar Pal to undergo RI for 2 years each u/s 406/34 IPC, which sentences shall meet the ends of justice in this case.
Both the sentences shall run concurrently .
Benefit u/s 428 Cr.PC be also given to the convicts.
Conviction warrants be prepared accordingly.
Copies of the judgment and order on the point of sentence be supplied to the convicts, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 06.03.2009) Addl. Session Judge
(North-West)-04
Rohini/Delhi
38
FIR No. - 189/04
P.S.-Rohini
06.03.09
Present: Sh. V.K.Negi,APP for the State.
All the three convicts Pappu @ Mahesh, Amar Pal @ Kanwar Pal and Member Singh @Satish in JC with their counsels.
Arguments on the point of sentence heard.
Vide separate order on the point of sentence, announced in the open court , all the three convicts - Pappu @ Mahesh , Member Singh @Satish and Amar Pal @ Kanwar Pal have been sentenced to undergo imprisonment for life and to pay a fine of Rs. 3000/- each in default SI for three months each u/s 302/34 IPC. Further all the three convicts have also been sentenced to undergo RI for 2 years each u/s 406/34 IPC, which sentences shall meet the ends of justice in this case. Both the sentences shall run concurrently .
Benefit u/s 428 Cr.PC be also given to the convicts.
Conviction warrants be prepared accordingly.
Copies of the judgment and order on the point of sentence be 39 supplied to the convicts, free of cost.
File be consigned to the record room.
(Announced in the open ) (Paramjit Singh)
(Court on 06.03.2009) Addl. Session Judge
(North-West)-04
Rohini/Delhi